SUPREME COURT OF THE UNITED STATES
REPUBLICAN NATIONAL COMMITTEE, et al. v.
DEMOCRATIC NATIONAL COMMITTEE, et al.
on application for stay
[April 6, 2020]
Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.
The District Court, acting in view of the dramatically evolving COVID–19 pandemic, entered a preliminary injunction to safeguard the availability of absentee voting in Wisconsin’s spring election. This Court now intervenes at the eleventh hour to prevent voters who have timely requested absentee ballots from casting their votes. I would not disturb the District Court’s disposition, which the Seventh Circuit allowed to stand.
Wisconsin’s spring election is scheduled for tomorrow, Tuesday, April 7, 2020. At issue are the presidential primaries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions. Democratic National Committee
, ___ F. Supp. 3d ___, ___, 2020 WL 1638374, *3 (WD Wis., Apr. 2, 2020).
In the weeks leading up to the election, the COVID–19 pandemic has become a “public health crisis.” Id.
, at ___, 2020 WL 1638374, *1. As of April 2, Wisconsin had 1,550 confirmed cases of COVID–19 and 24 deaths attributable to the disease, “with evidence of increasing community spread.” Id.
, at ___, 2020 WL 1638374, *3. On March 24, the Governor ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease. Ibid.
Because gathering at the polling place now poses dire health risks, an unprecedented number of Wisconsin voters—at the encouragement of public officials—have turned to voting absentee. Id.
, at ___, 2020 WL 1638374, *4. About one million more voters have requested absentee ballots in this election than in 2016. Ibid.
Accommodating the surge of absentee ballot requests has heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters. Id.
, at ___–___, 2020 WL 1638374, *4–*5.
Several weeks ago, plaintiffs—comprising individual Wisconsin voters, community organizations, and the state and national Democratic parties—filed three lawsuits against members of the Wisconsin Elections Commission in the United States District Court for the Western District of Wisconsin.[1
] The District Court consolidated the suits on March 28. The plaintiffs sought several forms of relief, all aimed at easing the effects of the COVID–19 pandemic on the upcoming election.
After holding an evidentiary hearing, the District Court issued a preliminary injunction on April 2. As relevant here, the court concluded that the existing deadlines for absentee voting would unconstitutionally burden Wisconsin citizens’ right to vote. See Burdick
504 U.S. 428
, 434 (1992); Anderson
460 U.S. 780
, 789 (1983). To alleviate that burden, the court entered a twofold remedy. First, the District Court extended the deadline for voters to request absentee ballots from April 2 to April 3. Second, the District Court extended the deadline for election officials to receive completed absentee ballots. Previously, Wisconsin law required that absentee ballots be received by 8 p.m. on election day, April 7; under the preliminary injunction, the ballots would be accepted until 4 p.m. on April 13, regardless of the postmark date. The District Court also enjoined members of the Elections Commission and election inspectors from releasing any report of polling results before the new absentee-voting deadline, April 13.
Although the members of the Wisconsin Elections Commission did not challenge the preliminary injunction, the intervening defendants applied to the Seventh Circuit for a partial stay. Of the twofold remedy just described, the stay applicants challenged only the second aspect, the extension of the deadline for returning absentee ballots. On April 3, the Seventh Circuit declined to modify the absentee-ballot deadline. The same applicants then sought a partial stay in this Court, which the Court today grants.
The Court’s order requires absentee voters to postmark their ballots by election day, April 7—i.e.
, tomorrow—even if they did not receive their ballots by that date. That is a novel requirement. Recall that absentee ballots were originally due back to election officials on April 7, which the District Court extended to April 13. Neither of those deadlines carried a postmark-by requirement.
While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline. Rising concern about the COVID–19 pandemic has caused a late surge in absentee-ballot requests. ___ F. Supp. 3d, at ___–___, 2020 WL 1638374, *4–*5. The Court’s suggestion that the current situation is not “substantially different” from “an ordinary election” boggles the mind. Ante
, at 3. Some 150,000 requests for absentee ballots have been processed since Thursday, state records indicate.[2
] The surge in absentee-ballot requests has overwhelmed election officials, who face a huge backlog in sending ballots. ___ F. Supp. 3d, at ___, ___, ___–___, ___–___, 2020 WL 1638374, *1, *5, *9–*10, *17–*18. As of Sunday morning, 12,000 ballots reportedly had not yet been mailed out.[3
] It takes days for a mailed ballot to reach its recipient—the postal service recommends budgeting a week—even without accounting for pandemic-induced mail delays. Id.
, at ___, 2020 WL 1638374, *5. It is therefore likely that ballots mailed in recent days will not reach voters by tomorrow; for ballots not yet mailed, late arrival is all but certain.[4
] Under the District Court’s order, an absentee voter who receives a ballot after tomorrow could still have voted, as long as she delivered it to election officials by April 13. Now, under this Court’s order, tens of thousands of absentee voters, unlikely to receive their ballots in time to cast them, will be left quite literally without a vote.
This Court’s intervention is thus ill advised, especially so at this late hour. See Purcell
549 U.S. 1
, 4–5 (2006) (per curiam
). Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court’s deadline. For this Court to upend the process—a day before the April 7 postmark deadline—is sure to confound election officials and voters.
What concerns could justify consequences so grave? The Court’s order first suggests a problem of forfeiture, noting that the plaintiffs’ written preliminary-injunction motions did not ask that ballots postmarked after April 7 be counted. But unheeded by the Court, although initially silent, the plaintiffs specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots. See Tr. 102–103 (Apr. 1, 2020).
Second, the Court’s order cites Purcell
, apparently skeptical of the District Court’s intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.
Third, the Court notes that the District Court’s order allowed absentee voters to cast ballots after election day. If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise? According to the stay applicants, election-distorting gamesmanship might occur if ballots could be cast after initial results are published. But obviating that harm, the District Court enjoined the publication of election results before April 13, the deadline for returning absentee ballots, and the Wisconsin Elections Commission directed election officials not to publish results before that date.[5
The concerns advanced by the Court and the applicants pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.
* * *
The majority of this Court declares that this case presents a “narrow, technical question.” Ante
, at 1. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.